In Brennan v. National Action Financial Services, Inc., 2012 WL 3888218 (E.D.Mich. 2012), Judge Cleland granted leave to amend to allow individual officers of the debt collection agency to be named to the lawsuit as defendants under the TCPA.
It is unsettled as to whether officers can be held personally liable under section 217 of the TCPA. The few courts who have addressed the issue have reached opposite conclusions. Compare Texas v. Am. Blastfax, Inc., 167 F.Supp.2d 892, 898 (W.D.Tex.2001) (“[A]n officer may be personally liable under the TCPA if he had direct, personal participation in or personally authorized the conduct found to have violated the statute, and was not merely tangentially involved. Individuals who directly … violate the TCPA should not escape liability solely because they are corporate officers.”) with Hammann v. 1–800 Ideas.com, Inc., 455 F.Supp.2d 942, 960–61 (D.Minn.2006) (“The Court finds that the context of the common carrier regulations provided for in 47 U.S . C. § 201–217, does not support Plaintiff’s interpretation of a ‘person’ which would extend liability beyond an individual ‘engaged as a common carrier for hire’ and impose liability on the employees and/or officers of such common carriers who have only engaged in such conduct through and for a corporation.”). In light of such confusion, it is unclear whether Plaintiff states a claim against the proposed Defendants upon which relief can be granted. However, Plaintiff has not brought a claim under which he undoubtedly cannot obtain relief. The court heeds the Supreme Court’s holding that courts should freely give leave to allow parties to amend complaints. Forman v. Davis, 371 U.S. 178, 182 (1962) (“Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires’; this mandate is to be heeded.”). ¶ Defendant has failed to provide any substantive reasoning as to why the parties should not be included beyond simply asserting futility. Indeed, it does not seem that adding the proposed parties will cause undue delay or prejudice to Defendant. “[O]utright refusal to grant the leave without any justifying reason appearing for the denial in not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id. Plaintiff is thereby granted leave to add Farinacci, Labaki, Garner, and Anderson to his complaint.